The Orphan Works Bill: “Wait Til Next Year!”

If you are a New York Mets fan like me, you’d know what it was like to be a supporter of orphan works legislation. For the past month, every time you thought the Mets would completely crumble and drop out of the baseball pennant race, they would come back. But then, on the very last day of the season, they lost and went home for the year. It was much the same with orphan works. We at PK had given up the orphan works bill for dead in early September when the Senate tried to push the bill through to no avail. Nothing was happening on the House side either. Then, thanks to the stick-to-it-tiveness of Senator Patrick Leahy’s staff, the Senate orphan works bill passed the Senate on Friday September 26.

That was the day Congress was to have adjourned for the year, and had that been the case, that would have been the end of the orphan works story. But with the country’s financial crisis raging and Congress in the middle of deliberations over a bill to rescue our financial institutions, there was still an opportunity to get a bill done. But how? The best option was to get either House Courts, Internet and Intellectual Property Subcommittee Chairman Berman or House Judiciary Committee Chairman Conyers to take the Senate bill that passed and put it on the “suspension calendar,” which is the place largely non-controversial legislation gets put so that it will get passed quickly. There can be no amendments to bills placed on the suspension calendar, but it needs a 2/3 majority to pass. On Saturday, September 27, several folks, including me, were on the phone imploring the members to move the bill. But it was to no avail. Several differences between the Senate and House bills, including the lack of a Notice of Use archive in the Senate bill, were too important to the House members. With the House about to vote on a bailout package the next day, it looked like time was going to run out for orphan works supporters.

Then, as we all know, the House rejected the proposed bailout bill on Monday the 29th and the effort got a four-day reprieve (although with the Jewish holidays that week, it was more like two). We were able to narrow down the problematic issues: first, the Notice of use archive (House leaders were willing to abandon the notion of an archive, so long as there was some contemporaneous documentation of a search); and second, that the minimum search requirements in the Senate bill did not include a requirement to search the pre-1978 records of the Copyright Office. It was going to be a tough climb – both the Senate and the House would have to pass new legislation before Congress adjourned. Regardless, I was optimistic.

The negotiations went on for hours and hours on Thursday into Friday, but in the end, PK, working with the user community (libraries, documentary filmmakers, educational institutions and the College Art Association) could not agree with on language with the House staff. Late Friday afternoon, the House voted in favor of a bailout bill and everybody went home. Time had run out.

Needless to say, we were disappointed, particularly because we had been promised by House leaders that the orphan works bill would move in lock-step with the IP Enforcement bill passed by Congress: that the loosening of copyright restrictions in the orphan works bill would balance the further strengthening of enforcement in the latter bill. But while there is plenty of blame to go around (and the MPAA deserves a good deal of it, lobbying against a bill that would have helped Hollywood after they had already gotten their IP Enforcement bill passed), I’d rather focus on what positive things came out of the process, so we can move forward quickly next year:

PK and its allies moved a copyright reform bill to the cusp of passage. The importance of this cannot be overstated. First, it is extremely hard to get any substantive legislation passed in Congress, period. Second, recent previous efforts to reform copyright laws over the past 5 years have never made it past a hearing. Particularly given the MPAA’s antipathy toward the bill, moving the bill this far was an accomplishment.

The visual artists, graphic designers and textile manufacturers who opposed orphan works relief now understand that they must change their business models. Orphan works relief was vigorously opposed by visual artists, graphic designers and textile manufacturers. And while we have thought some of their concerns misguided, they did a fine job of organizing and getting their voices heard. At the same time, the more enlightened of those artists saw that the world around them was changing and that it was perhaps time to take matters into their own hands to ensure that their works wouldn’t become orphaned. Here’s what the President of the Graphic Artists’ Guild had to say on that point:

I don't think Orphan Works is going to have a dramatic influence on? how we do business, but I hope it has awakened us all to the importance? of tending to business issues. If we as a community invested a fraction? of the energy we've expended on an apocalyptic vision of Orphan Works? into protecting our own creations, protesting unfair contracting ?practices or writing letters to low-paying publishers, we'd be in a ?far better market position than we are today. The fact is that we give? away more in the every day practice of our businesses than the? government could ever take from us.

The issues that still need to be worked out have been narrowed. The flurry in the final days to get the bill passed helped to narrow the issues that remain problematic. The biggest issue is clearly the notice of use. The user groups would have settled for a Copyright Office study on the matter, but the House leadership wanted a mandate that would have required contemporaneous documentation of a search. The user groups feared burdens that would have made using orphan works all but impossible. But the House leadership, reflecting the concerns of the visual artists, et al., wanted to protect against a person making up a search just prior to litigation. While I think that this is a million-in-one problem, the visual artists were very vocal on this point. The bottom line is that the issue will need to be dealt with if a bill is to move forward next year. What might be a good first step is for key members of Congress to ask the Copyright Office to undertake a study on the notice of use issue; ask the CO to solicit public input and come up with recommendations. This is how the Copyright Office’s original orphan works proceeding was kick-started.

Alex and Rashmi deserve hat-tips for working so hard on this issue all year long, and particularly last week. They were integral to getting the bill as far along as it did. I also want to thank the user community, the relevant Hill staffers and especially Maria Pallante of the Copyright Office for their efforts to get the bill done.

Wait til next year!

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